By: Mitchell Riese and Sarah Burke
In McMillion v. Mollenhauer, a former jailer brought a claim against an Indiana Sheriff’s Office alleging race discrimination because she was demoted from corporal, was not paid for her FMLA leave and was wrongfully terminated. The district court granted the Sheriff’s Office summary judgment because the jailer never returned to work after her FMLA leave expiredThe court also rejected the demotion claim because no pay was attached to that position and all other officers had had the title of corporal removed.
Johnnie McMillion began working for the LaPorte County Sheriff’s Office in 1996 as a jailer. In 2000, the Sheriff’s Office Chief gave McMillion the title of “corporal.” The title did not include an increase in pay or a change in benefits.
A new Sheriff was elected in 2006, and in 2008 a discussion ensued about what to do with jailers who held the title of “corporal.” Neither the Sheriff nor the Captain knew why these jailers were given the title by the previous administration. At that time, the Sheriff’s Office did not recognize a formal rank of corporal, and the jailers bearing the title did not have any authority over jailers or employees of the Sheriff’s Office or receive any additional pay or benefits. Because of this, in 2010 the Sheriff and the Captain removed the corporal title from the three remaining jailers who held the title.
Later, on December 6, 2010, McMillion reported to the Sheriff’s Office that she was ill and requesting leave under the FMLA. The leave was granted until it expired on March 5, 2011. On March 7 and 8, McMillion was scheduled for duty but failed to report to work.
McMillion was sent a letter asking her to contact the department captain by March 14 to communicate whether or not she planned on returning. Failure to do so would result in the assumption that she had resigned. McMillion did not contact the captain until March 17, when she tried to call him and instead spoke to his administrative assistant. During that conversation, she did not state whether she intended to come back to work, and instead later submitted a doctor’s note that she could not return until May. The department held the position open until the end of May but McMillion again failed to return to work On June 2, 2011 the Department informed McMillion she had been terminated.
McMillion first alleged that the loss of her corporal title was a discriminatory action; the district court disagreed. Rather, the evidence indicated that all officers had lost the title and McMillion had suffered no tangible harm—such as loss of pay or benefits, to show a discriminatory action.
McMillion further alleged that she was not paid for her FMLA leave. However, the court explained that an employee does not have such a right under the FMLA. The Court reasoned McMillion meant to claim race discrimination and disparate treatment, because she alleged another employee of another race had received paid leave but she did not. However, the district court found the circumstances surrounding that employee’s leave did not permit an inference of discrimination. This was because the other employee who was placed on sick leave in 2007 was hospitalized for a life-threatening illness that she alleged she had contracted while working in the jail, and that she intended to file a worker’s compensation claim. The sheriff, on the advice of the county attorney, extended the length of the jailer’s sick leave under the County’s formal policy, which allowed supervisors to grant additional paid sick leave on a case by case basis. McMillion’s claim did not allege anything similar to this situation. Instead, McMillion just never returned to work.
The plaintiff here appears to have had a very weak case. The fact that all of the corporals had their title removed and that the title carried with it no material benefit at all shows that there was no basis for the employee’s claim that the removal of the corporal title was discriminatory.
Furthermore, the fact that the employee did not timely respond to the employer’s inquiry as to when the employee would return to work, and in fact never did return to work, completely undermined the claim of wrongful termination. It is critical that employees on leave respond to the employer’s inquiries about return to work on a timely basis.
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